Baltimore & Ohio Railroad v. State

Alvey, C. J., delivered the opinion of the Court. The decision of this case, to a considerable extent, -depends upon principles that were involved in the case of State, use of Ricketts, vs. Balto. & Ohio R. Co., (ante p. 494). In that case it was held, that, the place where the accident occurred not being a crossing, but being the exclusive right of way of the railroad company, and the party killed being wrongfully upon the track, ⁵⁵⁵ there was no duty incumbent upon the employes of the company to keep a look-out for the protection of trespassers upon the road; and therefore there could he no recovery, even though there was negligence in the running of the train, unless it was distinctly shown that the presence of the deceased upon the track became known to the employes on the train, in time, by the use of reasonable care' and effort, to avoid the collision. In other words, that the negligence of the deceased, in wrongfully walking upon the track, and failing to use his senses to discover the approach of the train, so far contributed directly to the production of the injury as to preclude the right oí recovery.

In support of this proposition a number of decisions of Courts of high authority are cited in that case. In this case,, the accident occurred on the 10th of October, 1887. within the limits of the City of Baltimore. It was in open day-light, the hour being a little after 5 o'clock p. m. The place where the accident happened was not upon an open public street, nor at any public or usual crossing of the railroad track; but it occurred while the deceased was walking on the track, facing an approaching train, and where the railroad company had the exclusive right of way for the operation of its trains.

The place where the accident occurred was not far from the south-western limits of the city, and where the city has not been built up. The train that collided with the deceased, was leaving the city, hound for Washington, and" the deceased was going into the city ; thus confronting the approach of the train. All the track of the defendant's road west of the bridge at the intersection of Ostend street, as designated on the plat, is the private right of way of the defendant, and it is stated by the witnesses that it was about sixty or .seventy feet west of the bridge that the accident happened. It appears that there was a ⁵⁵⁶ small footpath, much used hy people in that neighborhood, along the north side of the tracks, and between the road bed of the defendant and the tracks of another railroad company; but.it is not a way in which the public had any rights, and it was only used by the implied license of the railroad company.

There is really no material conflict among the witnesses as to the facts relating to the accident. Some of them, owing to their position, saw more of the occurrence than others, and there is some slight variation in the narrative given by them; but there is no real conflict as to the material facts of the case. It is shown that the deceased was seen just before the accident walking in the foot-path between the tracks-of the,defendant and those of the Annapolis Short Line Company, and at that time the train for Washington was approaching at quite a fast rate of speed. From the time the train got within about a thousand feet of the place where the accident occurred, it continued in full view, in its approach, to any one a't or about the point of collision; and when this train was within a short distance, perhaps less than a hundred and fifty feet of the deceased, he stepped upon and crossed the north track of the defendant's road, diagonally, to the south side thereof, and pxxrsued his way on the ends of the cross-ties until he was struck and killed bj the engine.

All other persons at or about the scene of the accident heard and saw the approach of the train, and paid heed to it; the deceased being the only person who seemed not to be mindful of his danger, though immediately facing the rapidly approaching train. A more daring experiment, or grosser act of negligence, on the part of the deceased, could scarcely be imagined. It is true, the train was running at a much higher rate of speed than that allowed by the ordinance of the city, and in this, it is conceded, there was negligence ⁵⁵⁷ on the part of the defendant. But this disregard of the ordinance, and consequent act of negligence, on the part of the defendant, did not excuse or in any way justify the glaring act of negligence on the part of the deceased.

That has been ruled in many cases, and is now the settled law. Railroad Co. vs. Houston, 95 U. S., 702 ; Baito. & Ohio R. R. Co. vs. Mali, 66 Md., 53, 60 . The present is not unlike in principle the case put by Lord Chancellor Cairns, in the course of his opinion in the case of Railroad Co. vs. Slattery, 3 App. Cas. Ho.

Lords, 1166, referred to in Bacon’s Case, 58 Md., 485 , that if a train, which ought to give signal by whistle